By the constitution of the United States, congress have
power to establish an uniform rule of naturalization. It was
held, in the Circuit Court of the United States at Philadelphia,
in 1792, in Collet v. Collet, that the state governments
still enjoyed a concurrent authority with the United States
upon the subject of naturalization, and that though they
could not contravene the rule established by congress, or
"exclude those citizens who had been made such by that
rule, yet that they might adopt citizens upon easier terms
than those which congress may deem it expedient to impose."
But though this decision was made by two of the
judges of the Supreme Court, with the concurrence of the
district judge of Pennsylvania, it is obvious, that this opinion
was hastily and inconsiderately declared. If the construction
given to the constitution in this case was the true
one, the provision would be, in a great degree, useless, and
the policy of it defeated. The very purpose of the power
was exclusive. It was to deprive the states individually of
the power of naturalizing aliens according to their own will
and pleasure, and thereby giving them the rights and privileges
of citizens in every other state. If each state can naturalize
upon one year's residence, when the act of congress
requires five, of what use is the act of congress, and
how does it become an uniform rule?

This decision of the Circuit Court may be considered, as
in effect, overruled. In the same Circuit Court, in 1797,
Judge Iredell intimated, that if the question had not previously
occurred, he should be disposed to think, that the
power of naturalization operated exclusively, as soon as it
was exercised by congress. And in the Circuit Court of
Pennsylvania in 1814, it was the opinion of Judge Washington,
that the power to naturalize was exclusively vested
in congress. Afterwards, in Chirac v. Chirac, the chief justice
of the United States observed, that it certainly ought
not to be controverted, that the power of naturalization
was vested exclusively in congress. In Houston v. Moore,
Judge Story mentioned the power in congress to establish
an uniform rule of naturalization, as one which was exclusive,
on the ground of there being a direct repugnancy or
incompatibility in the exercise of it by the states. The
weight of authority, as well as of reason, may, therefore,
be considered as clearly in favour of this latter construction.

. . . . .

We are next to consider the rights and duties of citizens
in their domestic relations, as distinguished from the absolute
rights of individuals, of which we have already
treated. Most of these relations are derived from the law
of nature, and they are familiar to the institutions of every
country, and consist of husband and wife, parent and
child, guardian and ward, and master and servant. To
these may be added, an examination of certain artificial
persons created by law, under the well known name of
corporations. There is a still more general division of the
inhabitants of every country, under the comprehensive title
of aliens and natives, and to the consideration of them
our attention will be directed in the present lecture.

(1.) Natives are all persons born within the jurisdiction
of the United States. If they were resident citizens at the
time of the declaration of independence, though born
elsewhere, and deliberately yielded to it an express or implied
sanction, they became parties to it, and are to be considered
as natives; their social tie being coeval with the existence
of the nation. If a person was born here before our
independence, and before that period voluntarily withdrew
into other parts of the British dominions, and never
returned; yet, it has been held, that his allegiance accrued
to the state in which he was born, as the lawful successor
of the king; and that he was to be considered a subject by
birth. It was admitted, that this claim of the state to the
allegiance of all persons born within its territories prior to
our revolution, might subject those persons who adhere to
their former sovereign, to great inconveniences in time of
war, when two opposing sovereigns might claim their allegiance;
and, under the peculiar circumstances of the
case, it was, undoubtedly, a very strong application of the
common law doctrine of natural and perpetual allegiance
by birth. The inference to be drawn from the discussions
in the case of M'Ilvaine v. Coxe, would seem to be in favour
of the more reasonable doctrine, that no antenatus ever
owed any allegiance to the United States, or to any individual
state, provided he withdrew himself from this country
before the establishment of our independent government,
and settled under the king's allegiance in another part of
his dominions, and never afterwards, prior to the treaty of
peace, returned and settled here. The United States did
not exist as an independent government until 1776; and it
may well be doubted whether the doctrine of allegiance by
birth be applicable to the case of persons who did not reside
here when the revolution took place, and did not,
therefore, either by election or tacit assent, become members
of the newly created state. The ground of the decision
in the latter case was, that the party in question was not
only born in New-Jersey, but remained there as an inhabitant
until the 4th of October, 1776, when the legislature
of that state asserted the right of sovereignty, and the
claim of allegiance over all persons then abiding within its
jurisdiction. By remaining there after the declaration of
independence, and after that statute, the party had determined
his right of election to withdraw, and had, by his
presumed consent, become a member of the new government,
and was, consequently, entitled to protection, and
bound to allegiance. The doctrine in the case of Respublica
v. Chapman, goes also to deny the claim of allegiance, in
the case of a person who, though born here, were not here
and assenting to our new governments, when they were
first instituted. The language of that case was, that allegiance
could only attach upon those persons who were
then inhabitants. When an old government is dissolved,
and a new one formed, "all the writers agree," said
Ch. J. M'Kean, "that none are subjects of the adopted
government who have not freely assented to it."
The same principle was declared by the Supreme Court of
this state, in Jackson v. White, and it was held, that though
a British subject resided here as a freeholder on the 4th of
July, 1776, and on the 16th of July, 1776, when the convention
of this state asserted the right of sovereignty, and
the claim of allegiance over all persons, was abiding here;
yet that, under the circumstances, the person in question
being a British officer, and a few weeks thereafter placed
on his parole, and in December, 1776, joining the British
forces, was to be deemed an alien, and as having never
changed his allegiance, or elected to become a party to our
new government. The doctrine in the case of Ainslie v.
Martin, was contrary also to what had been held by the
same court in the cases of Gardner v. Ward, and Kilham v.
Ward, where it was decided, that persons born in Massachusetts
before the revolution, who had withdrawn to a
British province before our independence, and returned
during the war, retained their citizenship; while the same
persons, had they remained in the British province until
after the treaty of peace, would have been British subjects,
because they had chosen to continue their former allegiance,
and there was but one allegiance before the revolution.
This principle was asserted by the same court in the
case of Phipps, and I consider it to be the true and sound
law on the subject.

It is the doctrine of the English law, that natural born
subjects owe an allegiance, which is intrinsic and perpetual,
and which cannot be devested by any act of their own.
In the case of Macdonald, who was tried for high treason,
in 1746, before Lord Ch. J. Lee, and who, though born in
England, had been educated in France, and spent his riper
years there, his counsel spoke against the doctrine of natural
allegiance as slavish, and repugnant to the principles
of their revolution. The Court, however, said, it had never
been doubted, that a subject born, taking a commission
from a foreign prince, and committing high treason, was
liable to be punished as a subject for that treason. They
held, that it was not in the power of any private subject to
shake off his allegiance, and transfer it to a foreign prince;
nor was it in the power of any foreign prince, by naturalizing
or employing a subject of Great Britain, to dissolve
the bond of allegiance between that subject and the crown.
Entering into foreign service, without the consent of the
sovereign, or refusing to leave such service when required
by proclamation, is held to be a misdemeanor at common
law.

It has been a question, frequently and gravely argued,
both by theoretical writers, and in forensic discussions,
whether the English doctrine of perpetual allegiance applies
in its full extent to this country. The writers on public
law have spoken rather loosely, but generally in favour of
the right of a subject to emigrate, and abandon his native
country, unless there be some positive restraint by law, or
he is at the time in possession of a public trust, or unless
his country be in distress, or in war, and stands in need of
his assistance. Cicero regarded it as one of the firmest
foundations of Roman liberty, that the Roman citizen had
the privilege to stay or renounce his residence in the state,
at pleasure. The principle which has been declared in
some of our state constitutions, that the citizens have a natural
and inherent right to emigrate, goes far towards a
renunciation of the doctrine of the English common law,
as being repugnant to the natural liberty of mankind, provided
we are to consider emigration and expatriation, as
words intended in those cases to be of synonymous import.
But the allegiance of our citizens is due, not only to the
local government under which they reside, but primarily
to the government of the United States; and the doctrine
of final and absolute expatriation requires to be defined
with precision, and to be subjected to certain established
limitations, before it can be admitted into our jurisprudence,
as a safe and practicable principle, or laid down
broadly as a wise and salutary rule of national policy. The
question has been frequently discussed in the courts of the
United States, but it remains still to be definitively settled
by judicial decision.

A review of those discussions cannot be uninstructive.

In the case of Talbot v. Janson, the subject was brought
before the Supreme Court of the United States, in 1795.
It was contended on one side, that the abstract right of
individuals to withdraw from the society of which they
were members, was antecedent and superior to the law of
society, and recognized by the best writers on public law,
and by the usage of nations: that the law of allegiance was
derived from the feudal system, by which men were
chained to the soil on which they were born, and converted
from free citizens, to be the vassals of a lord or
superior; that this country was colonized and settled upon
the doctrine of the right of emigration; that the right was
incontestible, if exercised in due conformity with the
moral and social obligations; that the power assumed by
the government of the United States of naturalizing aliens,
by an oath of allegiance to this country, after a temporary
residence virtually implies that our citizens may become
subjects of a foreign power by the same means.

The counsel on the other side conceded, that birth gave
no property in the man, and that upon the principles of
the American government, he might leave his country
when he pleased, provided it was done bona fide, and with
good cause, and under the regulations prescribed by law;
and that he actually took up his residence in another country,
under an open and avowed declaration of his intention
to settle there. This was required by the most authoritative
writers on the law of nations; and Heineccius, in
particular, required that the emigrant should depart with
the design to expatriate, and actually join himself to another
state; that though all this be done, it only proved
that a man might be entitled to the right of citizenship in
two countries, and proving that he had been received by
one country, did not prove that his own country had surrendered
him; that the locomotive right finally depended
upon the consent of the government; and the power of
regulating emigration, was an incident to the power of
regulating naturalization, and was vested exclusively in
Congress; and until they had prescribed the mode and
terms, the character and the allegiance of the citizen continued.

The judges of the Supreme Court felt and discovered
much embarrassment in the consideration of this delicate
and difficult question, and they gave no definitive opinion
upon it. One of them observed, that admitting the intention
of expatriation had been legally declared, it was necessary
that it should have been carried into effect, and that
the party should have actually become a subject of the foreign
government; that the cause of removal must be lawful,
otherwise the emigrant acts contrary to his duty; that
though the legislature of a particular state should, by law,
specify the lawful causes of expatriation, and prescribe the
manner in which it might be effected, the emigration
could only affect the local allegiance of the party, and not
draw after it a renunciation of the higher allegiance due
to the United States; and that an act of Congress was requisite
to remove doubts, and furnish a rule of civil conduct
on this very interesting subject of expatriation. Another of
the judges admitted the right of individual emigration, to
be recognised by most of the nations of the world, and that
it was a right to be exercised in subordination to the public
interest and safety, and ought to be under the regulation
of law; that it ought not to be exercised according to a
man's will and pleasure, without any restraint; that every
man is entitled to claim rights and protection in society,
and he is, in his turn, under a solemn obligation to discharge
his duty; and no man ought to be permitted to
abandon society, and leave his social and political obligations
unperformed. Though a person may become naturalized
abroad, yet if he has not been legally discharged of
his allegiance at home, it will remain, notwithstanding the
party may have placed himself in difficulty, by double and
conflicting claims of allegiance.

The majority of the Supreme Court gave no opinion
upon the question; but the inference, from the discussion,
would seem to be, that a citizen could not devest himself
of his allegiance, except under the sanction of a law of the
United States; and that until some legislative regulations
on the subject were prescribed, the rule of the common
law must prevail.

In 1797, the same question was brought before the Circuit
Court of the United States for the district of Connecticut,
in the case of Isaac Williams, and Ch. J. Elsworth
ruled, that the common law of this country remained as it
was before the revolution. The compact between the community
and its members was, that the community should
protect its members, and that the members should at all
times be obedient to the laws of the community, and faithful
to its defence. No member could dissolve the compact
without the consent or default of the community, and
there had been no consent or default on the part of the
United States. No visionary writer carried the principle to
the extent, that a citizen might, at any, and at all times,
renounce his own, and join himself to a foreign country;
and no inference of consent could be drawn from the act
of the government in the naturalization of foreigners, as
we did not inquire into the previous relations of the party,
and if he embarrassed himself by contracting contradictory
obligations, it was his own folly, or his fault.

The same subject was again brought before the Supreme
Court in the case of Murray v. The Charming Betsey,
in the year 1804. It was insisted, upon the argument, that
the right of expatriation did exist, and was admitted by all
the writers upon general law, but that its exercise must be
accompanied by three circumstances, viz. fitness in point
of time, fairness of intent, and publicity of the act. The
court, however, in giving their opinion, avoided any decision
of this great and litigated point, by observing, that
"whether a person born within the United States, or becoming
a citizen according to the established laws of the
country, can devest himself absolutely of that character,
otherwise than in such manner as may be prescribed by
law, is a question which it was not necessary to decide"
Afterwards, in the Circuit Court of the United States, at
Philadelphia, Judge Washington observed, that he did not
then mean to meet the question, of expatriation, founded
on the self-will of a citizen, because it was beside the case
before the court; but that he could not admit, that a citizen
of the United States could throw off his allegiance to his
country without some law authorizing him to do so. This
was the doctrine declared also by the Chief Justice of Massachusetts.
The question arose again before the Supreme
Court of the United States, so late as February, 1822, in
the case of The Santissima Trinidada, and it was suffered to
remain in the same state of uncertainty. The counsel on
the one side insisted, that the party had ceased to be a
citizen of the United States, and had expatriated himself,
and become a citizen of Buenos Ayres, by the only means
in his power, an actual residence in that country, with a
declaration of his intention to that effect. The counsel on
the other side admitted, that men may remove from their
own country in order to better their condition, but it must
be done for good cause, and without any fraudulent intent;
and that the slavish principle of perpetual allegiance
growing out of the feudal system, and the fanciful idea
that a man was authorized to change his country and his
allegiance at his own will and pleasure, were equally removed
from the truth. Mr. Justice Story, in delivering the
opinion of the court, waived the decision of the question,
by observing, that the court gave no opinion whether a
citizen, independent of any legislative act to that effect,
could throw off his own allegiance to his native country;
that it was perfectly clear it could not be done without a
bona fide change of domicil, under circumstances of good
faith; and that it would be sufficient to ascertain the precise
nature and limits of this doctrine of expatriation,
when it should become a leading point for the judgment
of the court.

From this historical review of the principal discussions
in the federal courts on this interesting subject in American
jurisprudence, the better opinion would seem to be,
that a citizen cannot renounce his allegiance to the United
States without the permission of government, to be declared
by law; and that, as there is no existing legislative
regulation on the case, the rule of the English common law
remains unaltered.

There is, however, some relaxation of the old and stern
rule of the common law, required and admitted under the
liberal influence of commerce. Though a natural born
subject cannot throw off his allegiance, and is always amenable
for criminal acts against his native country, yet for
commercial purposes he may acquire the rights of a citizen
of another country, and the place of domicil determines
the character of a party as to trade. Thus, in the case of
Scott v. Schwartz, it was decided, in the Exchequer, the 13
Geo. II., that a residence in Russia gave the mariners of a
Russian ship the character of Russian mariners, within the
meaning of the British navigation act. And in the case of
Wilson v. Marryat, it was decided by the Court of K. B.,
that a natural born British subject might acquire the character,
and be entitled to the privileges of an American citizen
for commercial purposes. So, an American citizen
may obtain a foreign domicil, which will impress upon him
a national character for commercial purposes, in like manner
as if he were a subject of the government under which
he resided; and yet without losing on that account his original
character, or ceasing to be bound by the allegiance
due to the country of his birth. The subject who emigrates
bona fide, and procures a foreign naturalization, may entangle
himself in difficulties, and in a conflict of duties, as
Lord Hale observed; but it is only in very few cases that
the municipial laws would affect him. If there should be
war between his parent state and the one to which he has
attached himself, he must not arm himself against the parent
state; and if he be recalled by his native government,
he must return, or incur the pain and penalties of a contempt.
Under these disabilities, all the civilized nations of
Europe adopt (each according to its own laws) the natural
born subjects of other countries.

The French law, as well since as before their revolution,
will not allow a natural born subject of France to bear
arms, in time of war, in the service of a foreign power,
against France; and yet, subject to that limitation, every
Frenchman is free to abdicate his country.

(2.) An alien is a person born out of the jurisdiction of
the United States. There are some exceptions, however, to
this rule, by the ancient English law, as in the case of the
children of public ministers abroad, (provided their wives
be English women,) for they owe not even a local allegiance
to any foreign power. So, also, it is said, that in
every case, the children born abroad, of English parents,
were capable, at common law, of inheriting as natives, if
the father went and continued abroad in the character of
an Englishman, and with the approbation of the sovereign.
The statute of 25 Edw. III. stat 2, appears to have been
made to remove doubts as to the certainty of the common
law on this subject, and it declared, that children thereafter
born without the ligeance of the king, whose father
and mother, at the time of their birth, were natives, should
be entitled to the privileges of native subjects, except the
children of mothers who should pass the sea without leave
of their husbands. The statute of 7 Ann, c. 5. was to the
same general effect; but the statute of 4 Geo. II. c. 31.
required only that the father should be a natural born subject
at the birth of the child, and it applied to all children
then born, or thereafter to be born. Under these statutes
it has been held, that to entitle a child born abroad to the
rights of an English natural born subject, the father must
be an English subject; and if the father be an alien, the
child cannot inherit to the mother, though she was born
under the king's allegiance.

The act of Congress of the 14th of April, 1802, establishing
a uniform rule of naturalization, affects the issue
of two classes of persons: (1.) By the 4th section, it was
declared, that "the children of persons duly naturalized
under any of the laws of the United States, or who, previous
to the passing of any law on that subject by the government
of the United States, may have become citizens of
any one of the states, under the laws thereof, being under
the age of twenty-one years, at the time of their parents
being so naturalized, or admitted to the rights of citizenship,
shall, if dwelling in the United States, be considered
as citizens of the United States." This provision appears to
apply only to the children of persons naturalized, or specially
admitted to citizenship; and there is colour for the
construction, that it may have been intended to be prospective,
and to apply as well to the case of persons thereafter
to be naturalized, as to those who had previously been
naturalized. It applies to all the children of "persons duly
naturalized," under the restriction of residence and minority,
at the time of the naturalization of the parent. The
act applies to the children of persons duly naturalized, but
does not explicitly state, whether it was intended to apply
only to the case where both the parents were duly naturalized,
or whether it would be sufficient for one of them
only to be naturalized, in order to confer, as of course, the
right of citizens upon the resident children, being under
age. Perhaps it would be sufficient for the father only to
be naturalized; for in the supplementary act of the 26th of
March, 1804, it was declared, that if any alien, who should
have complied with the preliminary steps made requisite
by the act of 1802, dies before he is actually naturalized,
his widow and children shall be considered as citizens. This
provision shows, that the naturalization of the father, was
to have the efficient force of conferring the right on his
children; and it is worthy of notice, that this last act speaks
of children at large, without any allusion to residence or
minority; and yet, as the two acts are intimately connected,
and make but one system, the last act is to be construed
with reference to the prior one, according to the doctrine
of the case Ex parte Overington. (2.) By a subsequent part
of the same section, it is declared, that "the children of
persons, who now are, or have been, citizens of the United
States, shall, though born out of the limits and jurisdiction
of the United States, be considered as citzens of the United
States: provided that the right of citizenship shall not descend
to persons, whose fathers have never resided within
the United States." This clause is certainly not prospective
in its operation, whatever may be the just construction of
the one preceding it. It applied only to the children of
persons who then were, or had been citizens; and consequently
the benefit of this provision narrows rapidly by the
lapse of time, and the period will soon arrive, when there
will be no statute regulation for the benefit of children
born abroad, of American parents, and they will be
obliged to resort for aid to the dormant and doubtful
principles of the English common law. This provision
leaves us likewise in doubt, whether the act intended by
the words, "children of persons," both the father and
mother, in imitation of the statute of 25 Edw. III.; or the
father only, according to the more liberal declaration of
the statute of 4 Geo. II. This clause differs from the preceding
one, in being without any restriction as to the age
or residence of the child; and it appears to have been intended
for the case of the children of natural born citizens,
or of citizens who were original actors in our revolution,
and therefore it was more comprehensive and
more liberal in their favour. But the whole statute provision
is remarkably loose and vague in its terms, and it is
lamentably defective in being confined to the case of children
of parents who were citizens in 1802, or had been so
previously. The former act of 29th January, 1795, was not
so; for it declared generally, that "the children of citizens
of the United States, born out of the limits and jurisdiction
of the United States, shall be considered as citizens of the
United States." And when we consider the universal propensity
to travel, the liberal intercourse between nations,
the extent of commercial enterprise, and the genius and
spirit of our municipal institutions, it is quite surprising
that the rights of the children of American citizens, born
abroad, should, by the existing act of 1802, be left so
precarious, and so far inferior in the security which has
been given, under like circumstances, by the English statutes.

We proceed next to consider the disabilities, rights and
duties of aliens.

An alien cannot acquire a title to real property by descent,
or created by other mere operation of law. The law
quae nihil frustra, never casts the freehold upon an alien
heir who cannot keep it. This is a well settled rule of the
common law. It is understood to be the general rule, that
even a natural born subject cannot take by representation
from an alien, because the alien has no inheritable blood
through which a title can be deduced. If an alien purchases
land, or if land be devised to him, the general rule
is, that in these cases, he may take and hold, until an inquest
of office has been had; but upon his death, the land
would instantly, and of necessity, (as the freehold cannot
be kept in abeyance,) without any inquest of office, escheat
and vest in the state, because he is incompetent to transmit
by hereditary descent. If an alien, according to a case put
by Lord Coke, arrives in England, and hath two sons born
there, they are of course natural born subjects; and if one
of them purchases land, and dies without issue, his brother
cannot inherit as his heir, because he must deduce his title
by descent, through his father, who had no inheritable
blood. But the case, as put by Coke, has been denied to be
the law by the majority of the court in Collingwood v. Pace,
and it was there held, that the sons of an alien could inherit
to each other, and derive title through the alien father.
The elaborate opinion of Lord Ch. B. Hale, was distinguished
by his usual learning, though it was rendered
somewhat perplexing and obscure by the subtlety of his
distinctions, and the very artificial texture of his argument.
It is still admitted, however, that a grandson cannot inherit
to his grandfather, though both were natural born subjects,
provided the intermediate son was an alien, for the
grandson must, in that case, represent his father, and he
had no inheritable blood to be represented; and the reason
why the one brother may inherit from the other, is,
that as to them the descent is immediate, and they do not
take by representation from the father. The law according
to Lord Hale, respects only the mediate relation of the
brothers as brothers, and not in respect of their father,
though it be true that the foundation of their consanguinity
is in the father; and it does not look upon the father as
such a medium or nexus between the brothers, as that his
disability should hinder the descent between them. This
distinction in the law, which would admit one brother to
succeed as heir to the other, though their father be an
alien, and yet not admit a son to inherit from his grandfather
because his father was an alien, is very subtle. The
reason of it is not readily perceived, for the line of succession,
and the degrees of consanguinity, must equally, in
both cases, be traced through the father. The statute of 11
and 12 Wm. III. c. 6. was made on purpose to cure the
disability, and brush away these distinctions, by "enabling
natural born subjects to inherit the estate of their ancestors,
either lineal or collateral, nothwithstanding their father,
or mother, or other ancestor, by, from, through, or
under whom they might make or derive their title, were
aliens." This statute, however, did not go so far as to enable
a person to deduce title as heir, from a remote ancestor,
through an alien ancestor still living.

The provisions in the statute of Wm. III. is in force in
Maryland, as was admitted in the case last referred to, and
also in Kentucky; and it was adjudged, in the case of Palmer
v. Downer, to have been adopted, and to be in force in
Massachusetts. But it has not been adopted in this state;
and, therefore, with us, as well as in those other states
where there are no statute regulations on the subject, the
rule of law will depend upon the authority of Lord Coke,
or the justness and accuracy of the distinctions taken in the
greatly contested case of Collingwood v. Page, and which,
according to Sir William Blackstone, was, upon the whole,
reasonably decided. The enlarged policy of the present
day would naturally incline us to a benignant interpretation
of the law of descents, in favour of natural born citizens
who were obliged to deduce a title to land from a
pure and legitimate source, through an alien ancestor; and
Sir Matthew Hale admitted, that the law was very gentle in
the construction of the disability of alienism, and rather
contracted than extended its severity. If a citizen dies, and
his next heir be an alien who cannot take, the inheritance
descends to the next of kin who is competent to take, in
like manner as if no such alien has ever existed.

The distinctions between the antenati and the postnati, in
reference to our revolution, have been frequently the subject
of judicial discussion since the establishment of our
independence.

It was declared, in Calvin's case, that, "albeit the kingdoms
of England and Scotland should, by descent, be divided
and governed by several kings; yet all those who
were born under one natural obedience, while the realms
were united, would remain natural born subjects, and not
become aliens by such a matter ex post facto. The postnatus
in such a case would be ad fidem utriusque regis." It was accordingly
held, in that case, that the postnati of Scotland,
born after the union of the two crowns, could inherit lands
in England. The community of allegiance, at the time of
birth, and at the time of descent, both existed. The principle
of the common law contained in that case, that the
division of an empire worked no forfeiture of previously
vested rights of property, has been frequently acknowledged
in our American tribunals, and it rests on solid
foundations of justice. The titles of British subjects to
lands in the United States, acquired prior to our revolution,
remained, therefore, unimpaired. But persons born
in England, or elsewhere out of the United States, before
the 4th of July, 1776, and who continued to reside out of
the United States after that event, have been held to be
aliens, and incapable of taking lands subsequently by descent.
The right to inherit depends upon the existing state
of allegiance at the time of the descent cast; and an English
subject, born and always resident abroad, never owed
allegiance to a government which did not exist at his birth,
and he never became a party to our social compact. The
British antenati were, consequently, held to be incapable of
taking, by subsequent descent, lands in these states, which
are governed by the common law. This doctrine was very
liberally considered in respect to the period of the American
war, in the case of Den v. Brown; and it was there held,
that the British antenati were not subject to the disabilities
of aliens, as to the acquisition of lands bona fide acquired
between the date of our independence and that of the
treaty of peace in 1783, for the contest for our independence
was then pending by an appeal to arms, and remained
undecided. But the position was not tenable; and
in a case elaborately discussed, and greatly litigated on several
grounds, in the Court of Appeals, in Virginia, and
afterwards in the Supreme Court of the United States, it
was the acknowledged doctrine, that the British antenati
could not acquire, either by descent or devise, any other
than a defeasible title to lands in Virginia, between the
date of our independence and that of the treaty of peace
in 1783. The line of distinction between aliens and citizens
was considered to be coeval with our existence as an independent
nation.

It has been very frequently assumed, on the doctrine in
Calvin's case, that the same principle might not be considered
to apply in England, in respect to the American antenati,
and that they would, on removing within the British
dominions, continue to take and inherit lands in England,
as natural born subjects; but I apprehend, the assumption
has been made without just grounds. It was contrary to the
doctrine laid down by Professor Wooddeson, in his lectures,
published as early as 1792: and the late case in the
King's Bench, of Doe v. Acklam, seems entirely to explode
it. It was decided, that children born in the United States,
since the recognition of our independence by Great Britain,
of parents born here before that time, and continuing
to reside here afterwards, were aliens, and could not inherit
lands in England. To entitle a child born out of the
allegiance of the crown of England, to be deemed a natural
born subject, the father must be a subject at the time
of the birth of the child, and the people of the United
States ceased to be subjects in the view of the English law,
after the recognition of our independence, on the 3d day
of September, 1783. If the American antenati ceased to be
subjects in 1783, they must, of course, have lost their subsequent
capacity to take as subjects. The English rule is, to
take the date of the treaty of peace in 1783, as the era at
which we ceased to be subjects; but our rule is, to refer
back to the date of our independence. In the application
of that rule, the cases show some difference of opinion. In
this state, it has been held, that where an English subject,
born abroad, emigrated to the United States, in 1779, and
lived and died here, he was to be deemed an alien, and
the title to land, which he afterwards acquired by purchase,
was protected, not because he was a citizen, but on
the ground of the treaty of 1794. In Massachusetts, on the
strength of an act passed in 1777, persons born abroad,
and coming into that state after 1776, and before 1783,
and remaining there voluntarily, were adjudged to be citizens.
The Supreme Court, in Connecticut has adopted the
same rule, without the aid of any statute, and it was held,
that a British soldier, who came over with the British army
in 1775, and deserted, and came and settled in Connecticut
in 1778, and remained there afterwards, became, of
course, a citizen, and ceased to be an alien; and that the
United States were enabled to claim as their citizens, all
persons who were here voluntarily, at either the period of
our independence, or of the treaty of peace. The principle
of the case seemed to be, that the treaty of peace operated
by way of release from their allegiance of all British subjects
who were then domiciled here; for it was admitted,
that the rule would not apply to the subjects of any other
nation or kingdom, who came to reside here after the declaration
of independence, for they would not be within the
purview of the treaty. The same principle seems to have
been recognised by the chief justice of Massachusetts, in
Ainslie v. Martin; but it may be considered as very much
disturbed by the opinion of the judges of the Supreme
Court of Massachusetts, in the case of Phipps, a pauper, in
which they declare, that if a person was not a citizen before
the treaty of peace, he did not become such by the
mere force of that instrument, and by the mere fact of his
being there on the ratification of the treaty. If he was born
in Massachusetts, and had returned during the war,
though he had withdrawn himself before the date of independence,
he was considered as retaining his citizenship.
That was the amount of the cases of Gardner v. Ward,
and Kilham v. Ward, to which the judges referred; and this
is the final exposition which has been given to the law on
the subject.

Though an alien may purchase land, or take it by devise,
yet he is exposed to the danger of being devested of the
fee, and of having his lands forfeited to the state, upon an
inquest of office found; and if he dies before any such
proceeding be had, we have seen that the inheritance cannot
descend, but escheats of course. If the alien should
undertake to sell to a citizen, yet the prerogative right of
forfeiture is not barred by the alienation, and it must be
taken to be subject to the right of the government to seize
the land. His conveyance is good as against himself, and
he may, by a fine, bar persons in reversion and remainder,
but the title is still voidable by the sovereign. In Virginia,
this prerogative right of seizing lands bona fide sold by an
alien to a citizen, is abolished by statute; and so it was, to
a limited degree, in this state, by an act in 1826. An alien
may take a lease for years of a house, for the benefit of
trade. According to Lord Coke, none but an alien merchant
can lease land at all, and he is restricted to a house,
and if he dies before the termination of the lease, the remainder
of the term is forfeited to the king, for the law
gave him the privilege for habitation only, as necessary to
trade, and not for the benefit of his representatives. The
force of this rigorous doctrine of the common law is undoubtedly
suspended with us, in respect to the subjects of
those nations with whom we have commercial treaties; and
it is now justly doubted, whether the common law be really
so inhospitable, for it is inconsistent with the established
maxims of sound policy, and the social intercourse of nations.
Foreigners are admitted to the rights of citizenship
with us on liberal terms, and as the law requires five, and
only five years residence, to entitle them and their families
to the benefits of naturalization, it would seem to imply a
right, in the mean time, to the necessary use of real property;
and if it were otherwise, the means would be interdicted
which are requisite to render the five years residence
secure and comfortable.

Aliens are under the like disabilities as to uses and trusts
arising out of real estates. An alien can be seized to the use
of another, but the use cannot be executed as against the
state, and will be defeated on office found. Nor can an
alien be a cestui que trust but under the like disability, and
the sovereign may, in chancery, compel the execution of
the trust.

Aliens are capable of acquiring, holding, and transmitting
moveable property, in like manner, as our own citizens,
and they can bring suits for the recovery and protection
of that property. They may even take a mortgage
upon real estate by way of security for a debt, and this I
apprehend they may do without any statute permission,
for it has been the English law from the early ages. It was
so held lately in the Supreme Court of the United States,
and that the alien creditor was entitled to come into a
court of equity to have the mortgage foreclosed, and the
lands sold for the payment of his debt. The question
whether the alien in such a case could become a valid purchaser
of the mortgaged premises sold at auction at his
instance, is left untouched; and as such a privilege is not
necessary for his security, and would be in contravention
of the general policy of the common law, the better opinion
would seem to be, that he could not, in that way, without
special provision by statute, become the permanent
and absolute owner of the fee.

Even alien enemies, resident in the country, may sue
and be sued as in time of peace, for protection to their
persons and property is due, and implied from the permission
to them to remain, without being ordered out of
the country by the President of the United States. The
lawful residence does, pro hac vice, relieve the alien from
the character of an enemy, and entitles his person and
property to protection. The effect of war upon the rights
of aliens we need not here discuss, as it has been already
considered in a former part of this course of lectures,
when treating of the law of nations.

During the residence of aliens amongst us, they owe a
local allegiance, and are equally bound with natives to obey
all general laws for the maintenance of peace, and the
preservation of order, and which do not relate specially to
our own citizens. This is a principle of justice and of public
safety universally adopted; and if they are guilty of any
illegal act, or involved in disputes with our citizens, or with
each other, they are amenable to the ordinary tribunals of
the country. They and their sons are liable to be enrolled
in the militia of this state, provided they are seised of any
real estate within this state. This is a reasonable duty required
of them in consideration of the special benefit
which is conferred. It is in the nature of a charge upon
their property, and the personal service can be omitted
under the penalty of a moderate pecuniary assessment.

If aliens come here, with an intention to make this country
their permanent residence, they will have many inducements
to become citizens, since they are unable as
aliens, to have a stable freehold interest in land, or to hold
any civil office, or vote at elections, or take any active share
in the administration of the government. There is a convenient
and easy mode provided, by which the disabilities
of alienism may be removed, and the qualifications of natural
born citizens obtained. The terms upon which any
alien, being a free white person, can be naturalized, are
prescribed by the acts of Congress of the 14th of April,
1802, ch. 28.; the 3d of March, 1813, ch. 184.; and 22d of
March, 1816, ch. 32. It is required, that he declare, on
oath, before a state court, being a court of record with a
seal and clerk, and having common law jurisdiction, or before
a circuit or district court of the United States, three
years, at least, before his admission, his intention to become
a citizen, and to renounce his allegiance to his own
sovereign. At the time of his admission, his country must
be at peace with the United States, and he must, before
one of these courts, take an oath to support the constitution
of the United States, and likewise, on oath, renounce
and abjure his native allegiance. He must, at the time of
his admission, satisfy the court, that he has resided five
years, at least, within the United States, and one year, at
least, within the state where the court is held; and if he
shall have arrived after the peace of 1815, his residence
must have been continued for five years next preceding
his admission, without being at any time during the five
years out of the territory of the United States. The evidence
of the time of his arrival within the United States, is
to consist of the registry of his arrival made upon his report,
or the report of his parent or guardian, before a
court of the United States; and the certificate of that report
and registry, and of his declared intention to become
a citizen, must be produced to the court admitting him;
and he must satisfy the court, that during that time, he
has behaved as a man of good moral character, attached
to the principles of the constitution of the United States,
and well disposed to the good order and happiness of the
same. He must, at the same time, renounce any title, or
order of nobility, if any he hath. The act further provides,
that the children of persons duly naturalized, being minors
at that time, shall, if dwelling in the United States, be
deemed citizens. It is further provided, that if any alien
shall die after his report and declaration, and before actual
admission as a citizen, his widow and children shall be
deemed citizens.

A person thus duly naturalized, becomes entitled to all
the privileges and immunities of natural born subjects, except
that a residence of seven years is requisite to enable
him to hold a seat in congress, and no person, except a
natural born citizen, is eligible to the office of governor of
this state, or president of the United States.

The laws of Congress on the subject of naturalization,
have been subject to great variations. In 1790, only two
years' previous residence was required. In 1795, the period
was enlarged to five years; and in 1798, to 14 years;
and in 1802, it was reduced back to five years, where it still
remains. This period of probation has probably been
deemed as liberal as was consistent with a due regard to
our peace and safety. A moderate previous residence becomes
material, to enable aliens to acquire the knowledge
and habits proper to make wholesome citizens, who can
combine the spirit of freedom with a love of the laws.
Strangers, on their first arrival, and before they have had
time to acquire property, and form connexions and attachments,
are not to be presumed to be acquainted with our
political institutions, or to feel pride or zeal in their stability
and success.

If an alien dies before he has taken any steps under the
act of naturalization, his personal estate goes according to
his will, or if he died intestate, then according to the law
of distribution of the place of his domicil, at the time of
his death. The stationary place of residence of the party at
his death, determines the rule of distribution, and this is a
rule of public right, as well as of natural justice. Mobilia
personam sequuntur, immobilia situm. The unjust and inhospitable
rule of the most polished states of antiquity, prevailed
in many parts of Europe, down to the middle of the
last century; and Vattel expressed his astonishment that
there should have remained any vestiges of so barbarous a
usage in an age so enlightened. The law, which claimed,
for the benefit of the state, the effects of deceased foreigners,
who left no heirs, who were natives, existed in France
as late as the commencement of their revolution. This rule
of the French law, was founded not only on the Roman
law, but it was attempted to be justified by the narrow and
absurd policy of preventing the wealth of the kingdom
from passing into the hands of subjects of other countries.
It was abolished by the constitution of the first constituent
assembly, in 1791, and foreigners were admitted upon the
most liberal terms, and declared capable of acquiring and
disposing of property equally with natural born citizens.
The treaty of commerce between the United States and
France, in 1778, provided against the evil effects of this
law, by declaring that the inhabitants of the United States
were to be exempted from the droit d'aubaine, and might
dispose by will of their property, real and personal, (biens
meubles et immeubles,) and if they died intestate, it was to
descend to their heirs, whether residing in France, or elsewhere,
and the like privilege was conferred upon Frenchmen
dying in this country. The treaties of France with
other powers, usually contained the same relaxation of her
ancient rule; and though the treaty of 1778 was abolished
in 1798, yet, in the renewed treaty of 1801, the same provision
was inserted, and under it American citizens in
France, and French subjects in the United States, could
acquire, hold, and transmit, real as well as personal property,
equally as if they were natives, and without the necessity
of an act of naturalization, or special permission.
This last treaty expired in 1809, and the rights of Frenchmen
arising thereafter, were left, like those of other aliens,
to be governed by the general law of the land.

The Napoleon code did not pursue the liberal policy of
the French constituent assembly of 1791, and it seems to
have revived the harsh doctrine of the Droit D'Aubaine,
under the single exception, that aliens should be entitled
to enjoy in France the same civil rights secured to Frenchmen
by treaty in the country to which the alien belongs. It
is not sufficient to create the exemption in favour of the
alien, that civil rights are granted to Frenchmen by the
local laws of the foreign country, unless that concession be
founded upon treaty. The law at present in France is, that
a stranger cannot, except by special favour, dispose of his
property by will; and when he dies, the sovereign succeeds
by right of inheritance to his estate.

British subjects, under the treaty of 1794, between the
United States and Great Britain, were confirmed in the
titles which they then held to lands in this country, so far
as the question of alienism existed; and they were declared
competent to sell, devise, and transmit the same, in like
manner as if they were natives; and that neither they, nor
their heirs or assigns, should, as to those lands, be regarded
as aliens. The treaty applied to the title, whatever
it might be; but it referred only to titles existing at the time
of the treaty, and not to titles subsequently acquired. It
was, therefore, a provision of a temporary character, and
by the lapse of time it is rapidly becoming unimportant
and obsolete.

The legislature of this state, and probably of many other
states, are in the practice of annually granting to particular
aliens, by name, the privilege of holding real property. In
1825, they passed a general and permanent statute, enabling
aliens to take and hold lands in fee, and to sell,
mortgage, and devise, but not demise or lease the same,
equally, as if they were native citizens, provided the party
had previously taken an oath that he was a resident in the
United States, and intended always to reside therein, and
to become a citizen thereof as soon as he could be naturalized,
and that he had taken the incipient measures required
by law for that purpose. There are similar statute
provisions in favour of aliens in South Carolina, Indiana,
Illinois and Missouri; and in Louisiana, Pennsylvania and
Ohio, the disability of aliens to take, hold, and transmit
real property, seems to be entirely removed. In North
Carolina and Vermont, there is even a provision inserted
in their constitutions, that every person of good character,
who comes into the state, and settles, and takes an oath of
allegiance to the same, may thereupon purchase, and by
other just means, acquire, hold, and transfer land, and after
one year's residence, become entitled to most of the
privileges of a natural born subject. These civil privileges,
conferred upon aliens, by state authority, are dictated by a
just and liberal policy; but they must be taken to be strictly
local; and until a foreigner is duly naturalized, according
to the act of Congress, he is not entitled in any other state
to any other privileges than those which the laws of that
state allow to aliens. No other state is bound to admit, nor
would the United States admit, any alien to any privileges,
to which he is not entitled by treaty, or the laws of nations,
or the laws of the United States, or of the state in which
he dwells. The article in the constitution of the United
States, declaring that citizens of each state were entitled to
all the privileges and immunities of citizens in the several
states, applies only to natural born or duly naturalized citizens,
and if they remove from one state to another, they
are entitled to the privileges that persons of the same description
are entitled to in the state to which the removal
is made, and to none other. If, therefore, for instance, free
persons of colour are not entitled to vote in Carolina; free
persons of colour emigrating there from a northern state,
would not be entitled to vote. The laws of each state ought,
and must, govern within its jurisdiction; and the laws and
usages of one state cannot be permitted to prescribe qualifications
for citizens, to be claimed and exercised in other
states, in contravention to their local policy.

The act of Congress confines the description of aliens
capable of naturalization to "free white persons." I presume
that this excludes the inhabitants of Africa, and their
descendants; and it may become a question, to what extent
persons of mixed blood, as mulattoes, are excluded, and
what shades and degrees of mixture of colour disqualify
an alien from application for the benefits of the act of naturalization.
Perhaps there might be difficulties also as to
the copper-coloured natives of America, or the yellow or
tawny races of Asiatics, though I should doubt whether
any of them were "white persons" within the purview of
the law. It is the declared law of this state, that Indians are
not citizens, but distinct tribes, living under the protection
of the government, and, consequently, they never can be
made citizens under the act of Congress.

Before the adoption of the present constitution of the
United States, the power of naturalization resided in the
several states; and the constitution of this state, as it was
originally passed, required all persons born out of the
United States, and naturalized by our legislature, to take
an oath abjuring all foreign allegiance and subjection, in
all matters, ecclesiastical as well as civil. This was intended,
and so it operated, to exclude from the benefits of naturalization
Roman Catholics who acknowledged the spiritual
supremacy of the pope, and it was the result of former
fears and prejudices (still alive and active at the
commencement of our revolution) respecting the religion
of the Romish church, which European history had taught
us to believe was incompatible with perfect national independence,
or the freedom and good order of civil society.
So extremely strong, and so astonishingly fierce and unrelenting,
was public prejudice on this subject, in the early
part of our colonial history, that we find it declared by law
in the beginning of the last century, that every Jesuit and
popish priest who should continue in the colony after a
given day, should be condemned to perpetual imprisonment;
and if he broke prison and escaped, and was retaken,
he should be put to death. That law, said Mr.
Smith, the historian of the colony as late as the year 1756,
was worthy of perpetual duration!